47-18-1
Merger or consolidation--Preparation of plan--Approval of plan.
47-18-2
Articles of merger or consolidation--Contents--Effective date.
47-18-3
Effect of merger or consolidation--Surviving cooperative.
47-18-4
Rights and duties of surviving cooperative.
47-18-5
Amendment of surviving cooperative's articles.
47-18-5.1
Merger or consolidation of cooperative and its subsidiary.
47-18-6
Division of cooperative--Plan of division--Approval of plan.
47-18-7
Manner of approval of plan.
47-18-8
Articles of division--Contents and filing.
47-18-9
Disposal of assets--Authorization by members--Notice and approval.
47-18-10
Mortgaging assets to secure payment of debts.
47-18-11
Voluntary dissolution--Notice and approval.
47-18-12
Liquidation of assets--Distribution of proceeds.
47-18-13
Certificate of dissolution--Contents of certificate.
47-18-14
Filing and recording certificate of dissolution.
47-18-15
Involuntary dissolution--Action by attorney general--Grounds for involuntary
dissolution.
47-18-16
Default cured prior to entry of decree--Abatement of action.
47-18-16.1
Repealed.
47-18-16.2
Petition for reinstatement--Filing fee--Penalty for expired years.
47-18-16.3
Administrative dissolution of cooperative.
47-18-16.4
Notice of grounds for dissolution--Time limit for corrections--Subsequent existence--Authority of agent.
47-18-16.5
Application for reinstatement.
47-18-16.6
Denial of reinstatement--Appeal--Court action.
47-18-17
Liquidation of assets by court--Proper parties to bring action.
47-18-18
Power and authority of court--Appointment of receiver.
47-18-19
Creditors' claims--Notice--Time for filing.
47-18-20
Decree of dissolution--Filing and recording.
47-18-21
Action as staying all other proceedings.
47-18-22
Dismissal of action.
47-18-23
Title to property omitted from final distribution.
47-18-24
Appointment of trustee for property.
47-18-25
Court supervision of trustee.
47-18-26
Assets distributable to unknown persons--Deposit in state treasury--Subsequent
claim--Time limitation.
47-18-27
Dissolution as not impairing preexisting rights--Time limitation.
47-18-28
Filing false document as felony.
47-18-1. Merger or consolidation--Preparation of plan--Approval of plan.
If otherwise lawful, any two or more cooperatives may merge or consolidate under this chapter or under the law of the state where the surviving or new cooperative will exist. Before a cooperative may merge or consolidate with any other cooperative, a written plan of merger or consolidation shall be prepared by the board of directors or by a committee selected by the board or the members for that purpose. Such plan shall set forth all the terms of the merger or consolidation and the proposed effect thereof on all members and stockholders of the cooperative. In case of consolidation, the plan shall also contain the articles of incorporation of the new cooperative. The members shall approve the plan in the manner provided in § 47-15-8 for amendments to the articles.
Source: SDC 1939, § 11.1139 as enacted by SL 1965, ch 23, § 1.
47-18-2. Articles of merger or consolidation--Contents--Effective date.
Articles of merger or consolidation of cooperatives shall set forth the approved plan and such other information as is required by § 47-15-9. They shall be signed by two principal officers of each cooperative merging or consolidating, sealed with the seal of each such cooperative, filed, and recorded as an amendment to the articles. Unless otherwise specified in the plan, the merger, or consolidation is effective when the articles are so recorded.
Source: SDC 1939, § 11.1140 (1) as enacted by SL 1965, ch 23, § 1.
47-18-3. Effect of merger or consolidation--Surviving cooperative.
After the effective date of a merger or consolidation, the cooperatives which are parties to the plan become a single cooperative. In the case of a merger, the surviving cooperative is that cooperative so designated in the plan. In the case of a consolidation, the new cooperative is the cooperative provided for in the plan. The separate existence of all cooperatives which are parties to the plan, except the surviving or new cooperative, then ceases.
Source: SDC 1939, § 11.1140 (2) as enacted by SL 1965, ch 23, § 1.
47-18-4. Rights and duties of surviving cooperative.
After a merger or consolidation, the surviving or new cooperative possesses all the rights and all the property of each of the individual cooperatives, and is responsible for all their obligations. Title to any property is vested in the surviving or new cooperative with no reversion or impairment thereof caused by the merger or consolidation. No right of any creditor may be impaired by the merger or consolidation without his consent.
Source: SDC 1939, § 11.1140 (3) as enacted by SL 1965, ch 23, § 1.
47-18-5. Amendment of surviving cooperative's articles.
The articles of the cooperative surviving a merger are deemed amended to the extent provided in the plan of merger.
Source: SDC 1939, § 11.1140 (4) as enacted by SL 1965, ch 23, § 1.
47-18-5.1. Merger or consolidation of cooperative and its subsidiary.
A cooperative that owns shares of a domestic or foreign subsidiary corporation that carries at least ninety percent of the voting power of each class and series of the outstanding shares of the subsidiary that has voting power may merge the subsidiary into itself or into another such subsidiary without the approval of the board of directors or shareholders of the subsidiary, unless the articles of incorporation of any such corporation otherwise provide, and unless, in the case of a foreign subsidiary, approval by the subsidiary's board of directors or shareholders is required by the laws under which the subsidiary is organized. If approval of a merger by the subsidiary's shareholders is not required, the cooperative shall, within ten days after the effective date of the merger, notify each of the subsidiary's other shareholders, if any, that the merger has become effective. After the effective date of the merger or consolidation, the entities that were parties to the plan become a single cooperative. The procedure used to accomplish the merger or consolidation shall be as otherwise set forth in this chapter for mergers or consolidations of cooperatives. The subsidiary corporation shall be deemed the non-surviving cooperative for purposes of applying this chapter, as the context may require.
Source: SL 2009, ch 231, § 1.
47-18-6. Division of cooperative--Plan of division--Approval of plan.
Any cooperative may divide itself into two or more cooperatives under this chapter. A written plan of division shall be prepared by the board of directors or by a committee selected by the board for that purpose. Such plan shall set forth all the terms of the division and the proposed effect thereof on all members and stockholders of the cooperative. The plan shall also contain the articles of each new cooperative being formed and any amendments to the articles of the remaining cooperative.
Source: SDC 1939, § 11.1141 (1) as enacted by SL 1965, ch 23, § 1.
47-18-7. Manner of approval of plan.
The members of a cooperative shall approve the plan of division in the manner provided in § 47-15-8 for amendments to articles.
Source: SDC 1939, § 11.1141 (2) as enacted by SL 1965, ch 23, § 1.
47-18-8. Articles of division--Contents and filing.
Articles of division of a cooperative shall set forth the approved plan and such other information as required by § 47-15-9 and shall be filed and recorded as an amendment to the articles. Each part of the plan which contains the articles of a new cooperative shall be separately filed and recorded as articles of incorporation for such new cooperative.
Source: SDC 1939, § 11.1141 (3) as enacted by SL 1965, ch 23, § 1.
47-18-9. Disposal of assets--Authorization by members--Notice and approval.
Except as authorized by the members, the board of directors of a cooperative may not dispose of all or substantially all of the cooperative's fixed assets. At any meeting the members may authorize the disposition of all or substantially all of a cooperative's fixed assets if:
(1) Notice that such disposition will be considered at such meeting has been given to all persons entitled to vote thereon; and
(2) Such disposition has been approved by three-fourths of those voting at the meeting.
Source: SDC 1939, § 11.1130 (1) as enacted by SL 1965, ch 23, § 1.
47-18-10. Mortgaging assets to secure payment of debts.
Unless the bylaws of a cooperative provide otherwise, the board of directors may secure payment of a cooperative's debts by mortgaging the cooperative's rights, privileges, authority and franchises, revenues, and other property.
Source: SDC 1939, § 11.1130 (2) as enacted by SL 1965, ch 23, § 1.
47-18-11. Voluntary dissolution--Notice and approval.
At any member meeting of a cooperative, whether or not a quorum is present, a cooperative may dissolve if:
(1) Notice that a resolution for dissolution will be considered and acted upon has been given to all members and to all other persons entitled by the articles to vote thereon pursuant to resolution adopted by the board of directors, and
(2) Such resolution is adopted by members holding three-fourths of the member votes cast thereon. The articles may permit stockholders to vote on the resolution for dissolution.
Source: SDC 1939, § 11.1143 (1) as enacted by SL 1965, ch 23, § 1.
47-18-12. Liquidation of assets--Distribution of proceeds.
When the resolution for dissolution of a cooperative is adopted, either a committee designated by the resolution or the board of directors shall liquidate all assets and pay the net proceeds of such liquidation available for distribution to all persons entitled to the same by law, the articles and the bylaws.
Source: SDC 1939, § 11.1143 (2) as enacted by SL 1965, ch 23, § 1.
47-18-13. Certificate of dissolution--Contents of certificate.
A certificate of dissolution of a cooperative shall be signed by a majority of directors or of committee members and shall be sealed with the cooperative's seal, if any, stating:
(1) The name of the cooperative;
(2) The name and address of each director or committee member;
(3) The date of adoption of the resolution of dissolution;
(4) A statement that all liquidation activities have been completed and that there are no suits pending against the cooperative.
Source: SDC 1939, § 11.1143 (3) as enacted by SL 1965, ch 23, § 1.
47-18-14. Filing and recording certificate of dissolution.
The certificate of dissolution required by § 47-18-13 shall be filed and recorded as provided in § 47-15-9 and thereupon the existence of the cooperative ceases.
Source: SDC 1939, § 11.1143 (4) as enacted by SL 1965, ch 23, § 1.
47-18-15. Involuntary dissolution--Action by attorney general--Grounds for involuntary dissolution.
A cooperative may be dissolved involuntarily by a decree of the circuit court where the principal office or registered agent is located in an action commenced by the attorney general when it is established that:
(1) The cooperative's certificate of incorporation was procured through fraud; or
(2) The cooperative has continued to exceed or abuse the authority conferred upon it by chapters 47-15 to 47-20, inclusive; or
(3) The cooperative failed to comply with a court order for the production of books, records, or other documents of the cooperative as provided in § 47-20-3.
Source: SDC 1939, § 11.1144 (1) as enacted by SL 1965, ch 23, § 1; SL 1989, ch 390, § 5.
47-18-16. Default cured prior to entry of decree--Abatement of action.
If the cooperative cures a default under subdivision 47-18-15(3) prior to entry of the court's final decree in an action brought under § 47-18-15 and pays all penalties and court costs that have accrued, the cause of action with respect to the default so cured will abate.
Source: SDC 1939, § 11.1144 (2) as enacted by SL 1965, ch 23, § 1; SL 1989, ch 390, § 6.
47-18-16.2. Petition for reinstatement--Filing fee--Penalty for expired years.
A cooperative whose corporate charter existence has been revoked as provided by § 47-18-16.1 may petition for reinstatement as a corporation prior to July 1, 1980 on forms provided by the secretary of state. The petition shall be executed on behalf of the corporation by its president or secretary. The petition shall be filed with the secretary of state. Delivery may be made by electronic transmission if and to the extent permitted by the Office of the Secretary of State. If the document is filed in typewritten or printed form and not transmitted electronically, the Office of the Secretary of State may require one exact or conformed copy to be delivered with the document. Such renewal of corporate existence shall be made on forms prescribed and furnished by the secretary of state. Filing fee shall be as stated in § 47-20-8. In addition to the above fee, a penalty of twenty dollars per year for the period of duration which its corporate existence has been expired shall be charged.
Source: SL 1976, ch 288, § 3; SL 1977, ch 381, § 7; SL 2012, ch 222, § 3.
47-18-16.3. Administrative dissolution of cooperative.
The secretary of state may commence a proceeding under § 47-18-16.4 to administratively dissolve a cooperative if:
(1) The cooperative does not pay within sixty days after they are due any fees or penalties imposed by chapters 47-15 to 47-20, inclusive, or other law;
(2) The cooperative does not deliver its annual report to the secretary of state within sixty days after it is due;
(3) The cooperative is without a registered agent or registered office in this state for sixty days or more;
(4) The cooperative does not notify the secretary of state within sixty days that its registered agent has been changed or that its registered agent has resigned; or
(5) The cooperative's period of duration stated in its articles of incorporation expires.
Source: SL 1989, ch 390, § 7; SL 2008, ch 275, § 58.
47-18-16.4. Notice of grounds for dissolution--Time limit for corrections--Subsequent existence--Authority of agent.
If the secretary of state determines that one or more grounds exist under § 47-18-16.3 for dissolving a cooperative, he shall serve the cooperative with written notice of his determination under § 47-15-22. If the cooperative does not correct each ground for dissolution or demonstrate to the reasonable satisfaction of the secretary of state that each ground determined by the secretary of state does not exist within sixty days after service of the notice is perfected, the secretary of state shall administratively dissolve the cooperative by signing a certificate of dissolution that recites the ground or grounds for dissolution and its effective date. The secretary of state shall file the original of the certificate and serve a copy on the cooperative under § 47-15-22. A cooperative administratively dissolved continues its corporate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs under this chapter. Administrative dissolution of a cooperative does not terminate the authority of its registered agent.
Source: SL 1989, ch 390, § 8.
47-18-16.5. Application for reinstatement.
Any cooperative administratively dissolved under § 47-18-16.4 may apply to the secretary of state for reinstatement within two years after the effective date of dissolution. The application shall:
(1) Recite the name of the cooperative and the effective date of its administrative dissolution; and
(2) State that the ground or grounds for dissolution either did not exist or have been eliminated.
If the secretary of state determines that the application contains the information required and that the information is correct, he shall cancel the certificate of dissolution and prepare an original and one copy of a certificate of reinstatement that recites his determination and the effective date of reinstatement, file the original of the certificate, and serve the copy on the cooperative under § 47-15-22. When the reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the cooperative resumes carrying on its business as if the administrative dissolution had never occurred.
Source: SL 1989, ch 390, § 9.
47-18-16.6. Denial of reinstatement--Appeal--Court action.
If the secretary of state denies a cooperative's application for reinstatement following administrative dissolution, he shall serve the corporation under § 47-15-22 with a written notice that explains the reason or reasons for denial. The cooperative may appeal the denial of reinstatement to the circuit court wherein its registered office is located within thirty days after service of the notice of denial is perfected. The cooperative appeals by petitioning the court to set aside the dissolution and attaching to the petition copies of the secretary of state's certificate of dissolution, the cooperative's application for reinstatement, and the secretary of state's notice of denial. The court may summarily order the secretary of state to reinstate the dissolved cooperative or may take other action the court considers appropriate. The court's final decision may be appealed as in any other civil proceedings.
Source: SL 1989, ch 390, § 10.
47-18-17. Liquidation of assets by court--Proper parties to bring action.
The circuit court for the county where the principal office or registered agent of the cooperative is located may liquidate the assets and business of such cooperative when an action for that purpose is filed by or on behalf of:
(1) A majority of the designated committee or directors when a resolution is adopted pursuant to § 47-18-11;
(2) The attorney general when a decree of dissolution has been obtained pursuant to § 47-18-15;
(3) A judgment creditor whose execution is returned unsatisfied when it is established that the cooperative is unable to pay its debts as they become due in the usual course of its business;
(4) Any creditor when it is established that the cooperative is dissolving pursuant to §§ 47-18-11 to 47-18-14, inclusive, or §§ 47-18-16.3 to 47-18-16.6, inclusive, without making adequate provision for payment of all creditors.
Source: SDC 1939, § 11.1145 (1) as enacted by SL 1965, ch 23, § 1; SL 1989, ch 390, § 11.
47-18-18. Power and authority of court--Appointment of receiver.
Upon the filing of any action under § 47-18-17, the court acquires exclusive jurisdiction of all matter pertaining to the liquidation of such cooperative and the distribution of its assets to persons entitled thereto and may determine and order paid the expense of such liquidation proceedings. The court has power to issue injunctions, appoint receivers with such duties and powers as the court may direct, and take any other action necessary to the cooperative's liquidation. A receiver appointed in such proceeding has authority to sue and be sued as receiver for the cooperative.
Source: SDC 1939, § 11.1145 (2) as enacted by SL 1965, ch 23, § 1.
47-18-19. Creditors' claims--Notice--Time for filing.
The court having jurisdiction of an action under § 47-18-17 shall fix the time within which creditors may file claims and shall prescribe the notice to be given to interested persons. Creditors who do not file their claims within the time limit may not participate in any distribution thereafter made, unless the court upon good cause shown extends their time for filing.
Source: SDC 1939, § 11.1145 (3) as enacted by SL 1965, ch 23, § 1.
47-18-20. Decree of dissolution--Filing and recording.
When the court approves the final distribution of a cooperative's assets, it shall enter a decree in the nature of a certificate of dissolution which shall be filed and recorded in the secretary of state's office.
Source: SDC 1939, § 11.1145 (4) as enacted by SL 1965, ch 23, § 1.
47-18-21. Action as staying all other proceedings.
The filing of an action under § 47-18-17 operates as a stay of all other proceedings against the cooperative until such time as the court issues its final judgment or directs otherwise.
Source: SDC 1939, § 11.1145 (5) as enacted by SL 1965, ch 23, § 1.
47-18-22. Dismissal of action.
The court having jurisdiction of an action brought under § 47-18-17 upon proper cause shown may at any time order the proceedings dismissed upon such terms and conditions as the court may impose.
Source: SDC 1939, § 11.1145 (6) as enacted by SL 1965, ch 23, § 1.
47-18-23. Title to property omitted from final distribution.
Upon the filing and recording of the certificate or decree of dissolution of a cooperative, title to any property omitted from the final distribution vests in the surviving directors or committee members who signed the certificate, as trustees. They have all the powers of the cooperative with respect to such property and shall distribute the property or its proceeds to the persons beneficially entitled thereto.
Source: SDC 1939, § 11.1146 (1) as enacted by SL 1965, ch 23, § 1.
47-18-24. Appointment of trustee for property.
When no trustee mentioned in § 47-18-23 can be found, the circuit court for the county where the property is located has power to appoint trustees upon application of any person having an interest in such property or its disposition.
Source: SDC 1939, § 11.1146 (2) as enacted by SL 1965, ch 23, § 1.
47-18-25. Court supervision of trustee.
Any trustee mentioned in § 47-18-23 may at any time make application to the proper circuit court for supervision of liquidation pursuant to §§ 47-18-17 to 47-18-22, inclusive.
Source: SDC 1939, § 11.1146 (3) as enacted by SL 1965, ch 23, § 1.
47-18-26. Assets distributable to unknown persons--Deposit in state treasury--Subsequent claim--Time limitation.
Upon liquidation of a cooperative, the assets distributable to persons who are unknown or cannot be found may be reduced to cash and deposited with the state treasury. If claimed within ten years thereafter such funds shall be paid without interest to persons entitled thereto upon proof satisfactory to the state treasurer of their right thereto. If not claimed within ten years, such funds shall become the property of the state to be used in furthering agriculture.
Source: SDC 1939, § 11.1147 as enacted by SL 1965, ch 23, § 1.
47-18-27. Dissolution as not impairing preexisting rights--Time limitation.
Except as provided in §§ 47-18-17 to 47-18-22, inclusive, the dissolution of a cooperative does not impair any remedy available to or against such cooperative, its directors, stockholders, or members for any claim existing or any liability incurred prior to such dissolution if a proceeding thereon is commenced within two years after the date of recording the certificate or decree of dissolution.
Source: SDC 1939, § 11.1148 as enacted by SL 1965, ch 23, § 1.
47-18-28. Filing false document as felony.
A person who files, or causes to be filed, a document required to be filed by this chapter, which he knows to be materially false in any respect, is guilty of a Class 6 felony.
Source: SL 1983, ch 15, § 41.